State v. Miller, 535 P.3d 390

Background

In March 2019 at a post-party gathering, Colleen took Advil PM and alcohol, went to bed, and later awoke to Miller allegedly inserting fingers into her vagina while she was groggy; she later alleged additional sexual conduct after waking.
Colleen went to the hospital that morning, was examined by a sexual-assault nurse examiner (Nurse), had photos taken of neck bruises, received STI/pregnancy prophylaxis, but did not report to police until three months later.
The State charged Miller with object rape (based on the digital penetration while she slept), forcible sodomy, and forcible sexual abuse; trial occurred in November 2021.
Nurse testified about statements Colleen made during the exam; defense objected on hearsay grounds and the court admitted the statements under Utah R. Evid. 803(4).
Defense argued consent and attacked credibility (including pointing to hickeys on Miller); jury convicted only on object rape and acquitted on the other counts.
On appeal Miller raised: (1) ineffective assistance for failing to move for directed verdict, (2) ineffective assistance for not stressing an inconsistency (jeans vs. shorts) in closing, (3) sought Rule 23B remand alleging counsel failed to challenge a juror (Juror 15) with prior ties to defendant/witnesses, and (4) challenged admissibility of Nurse’s hearsay testimony under 803(4).

Issues

Issue	Miller's Argument	State's Argument	Held
1) Counsel ineffective for not moving for directed verdict (insufficient evidence/inherent improbability)	Colleen's testimony was inherently improbable (contradictions, no corroboration), so counsel should have moved for acquittal	Evidence was sufficient; inconsistencies were for the jury and did not render testimony so implausible that no reasonable juror could convict	Counsel not deficient; motion would have been futile and the testimony could support conviction
2) Counsel ineffective for failing to emphasize clothing discrepancy (jeans vs. shorts) in closing	The clothing discrepancy was critical to feasibility of the object-rape theory and undermined credibility; counsel should have stressed it	Counsel reasonably pursued broader credibility strategy (buyer’s remorse, hickeys) and may have avoided rebuttal from State; omission was tactical	No deficient performance; omission plausibly strategic and not objectively unreasonable
3) Rule 23B remand for juror-strike failure (Juror 15 was defendant’s/former teachers’ teacher)	Post-trial evidence shows Juror 15 taught defendant and two defense witnesses and had negative history; counsel learned this during trial and should have sought removal	Presumption counsel’s retention decision was strategic/plausibly justifiable; allegations are speculative and do not show counsel inattentive or unexplained failure	Remand denied; allegations do not establish deficient performance or prejudice sufficient for ineffective-assistance claim
4) Trial court erred in admitting Nurse’s testimony under Utah R. Evid. 803(4)	Much of Nurse’s testimony (contextual details) exceeded what was reasonably pertinent to diagnosis/treatment and was therefore inadmissible hearsay	Nurse’s exam and standardized questioning served medical diagnosis/treatment purposes; statements reasonably pertinent to treatment are admissible even if also useful to investigation	Admission affirmed; wholesale hearsay objection properly overruled and statements fell within 803(4) or required specific contemporaneous objections to discrete items

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance standard: deficient performance and prejudice)
Yarborough v. Gentry, 540 U.S. 1 (2003) (deference to counsel’s tactical choices in closing argument)
State v. Jok, 493 P.3d 665 (Utah 2021) (standard for when testimony is inherently improbable)
State v. Prater, 392 P.3d 398 (Utah 2017) (rare circumstances where appellate court may overturn verdict for insufficient evidence due to inherent improbability)
State v. Guzman, 427 P.3d 401 (Utah Ct. App. 2018) (admission of victim statements to medical examiner under rule 803(4))
State v. Litherland, 12 P.3d 92 (Utah 2000) (deference to counsel’s jury-selection judgments)
State v. Marquina, 478 P.3d 37 (Utah 2020) (presumption counsel’s juror decisions are strategic; how to rebut)
State v. Norton, 361 P.3d 719 (Utah Ct. App. 2015) (Rule 23B remand standard for supplementing record to support ineffective-assistance claims)
State v. Tirado, 392 P.3d 926 (Utah Ct. App. 2017) (requirements for granting Rule 23B remand)
United States v. Iron Thunder, 714 F.2d 765 (8th Cir. 1983) (statements to physicians reasonably related to medical diagnosis/treatment admissible under hearsay exception)
State v. Fedorowicz, 52 P.3d 1194 (Utah 2002) (trial-court gatekeeping discussed in context of rule 404(b))